Lies and Legal Liability
Guest essay by Roger Sowell
The field of climate science, with controversial issues such as whether the planet is warming due to man’s burning of fossil fuels, or the world is blissfully ignoring additional carbon dioxide in the atmosphere, or perhaps the globe is cooling down into the next ice age, has created and still creates vigorous expressions of opinion, and some name-calling, defamatory statements, and calls for deliberate lies and deceit. There appears to have also been outright lies, false statements, and fabrication of data, among other deceitful practices. This article explores some of the legal ramifications, criminal cases and Defamation in Part One. Part Two will continue the discussion on more of the civil causes of action.
We begin with what is Freedom of Speech? United States law is the basis here, with the understanding that other countries have different laws respecting Free Speech. Free Speech is a fundamental right guaranteed by the First Amendment to the US Constitution, “Congress shall make no law… abridging the freedom of speech . . . ” From that simple phrase, many thousands of pages have been written over many decades. Free Speech means, in general, that a person can say or write whatever he or she pleases, however, there are quite a number of restrictions that legally limit this. In effect, a person may still say or write whatever he or she pleases, but there can be legal consequences. Those consequences can range from a nominal award of $1, to millions of dollars in damages, up to the ultimate penalty of death after trial and conviction. The death penalty sounds harsh, for simply speaking some words, but that is the case and will be examined shortly. The Free Speech clause in the Constitution limits the government from passing laws regulating speech. The courts have allowed quite a number of exceptions to Congress’ power regarding Free Speech, so that we have a more orderly society. There are both Federal and State laws regulating speech. Also, Free Speech has been recognized to include oral and written communication, plus expressive conduct.
It is convenient to categorize Free Speech laws by the type of court in which the case will be heard, either criminal or civil. Crimes are examined first.
Speech as a Crime
In the criminal courts, speech can be a crime; for example perjury, sedition, treason, death threats, child pornography, unlawful campaign contributions, false statement to a government official, false statements as an element of fraud, impersonation of another, hate speech, and conspiracy to commit other crimes. Punishments range from a monetary fine and jail, to prison, to the death penalty.
Perjury is the willful utterance of false statements while under oath. The penalty can be prison of a few years, however if the false statements under oath result in the conviction and execution of an innocent person, the perjurer is also liable for execution after trial and conviction. In the climate science context, it is conceivable that a person could be charged and convicted of perjury. One must merely give false statements while under oath, as a general statement of the rule. There are numerous caveats, however.
Sedition is “an agreement, communication, or other preliminary activity aimed at inciting treason or some lower commotion against public authority.” (Black’s Law Dictionary; the Federal law has similar language but more detail.)
Treason is “attempting to overthrow the government of the state to which one owes allegiance, either by making war against the state or by materially supporting its enemies.” (Black’s Law Dictionary; as with Sedition above, the Federal law has similar language but much more detail.)
A death threat is a “threat to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety. . .” (California Penal Code Section 422) Within the climate science context, it is unfortunate to observe some of the participants escalating the verbal wars to this level.
Child pornography is “material depicting a child under 18 in sexual activity.” (Black’s Law Dictionary; various state laws have similar definitions; see e.g. California Penal Code Section 311.2(b)). One hopes that the various players in the climate change arena do not commit this crime.
Campaign contributions can be considered speech by expressive conduct. Such campaign contributions are limited by the Federal Election Commission regulations found in 11 CFR 110 and following.
False statement to a government official is a crime, for example, a false statement to a police officer that a crime has been committed. (California Penal Code Section 148.5)
False statements are an element of fraud where it is a crime to deprive another of money or property by a false statement or misrepresentation. (California Penal Code Section 484). This can apply to anyone who obtains money, as in a research grant, based upon false statements in the grant proposal.
Impersonation of another is a crime where a “person . . .knowingly and without consent credibly impersonates another actual person through or on an Internet Web site or by other electronic means for purposes of harming, intimidating, threatening, or defrauding another person. . .” Punishment is up to $1,000 and one year in county jail. (California Penal Code 528.5) It is also a crime to impersonate a police officer. In the climate science context, a famous case is that of Dr. Peter Gleick, who allegedly impersonated another in order to gain access to confidential information at the Heartland Institute, a known skeptic organization active in the climate science arena. See link.
Hate speech is the crime where a “person, whether or not acting under color of law, shall by force or threat of force, willfully injure, intimidate, interfere with, oppress, or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of this state or by the Constitution or laws of the United States in whole or in part because of one or more of the actual or perceived characteristics of the victim listed: (1) Disability, (2) Gender, (3) Nationality, (4) Race or ethnicity, (5) Religion, (6) Sexual orientation, (7) Association with a person or group with one or more of these actual or perceived characteristics.” (California Penal Code Section 422.55 and 422.6)
Conspiracy to commit other crimes is “an agreement by two or more persons to commit an unlawful act.” (Black’s Law Dictionary) Where the agreement is made by discussions, or speech, such speech is unlawful. This brings a great number of crimes within the realm of illegal speech, literally hundreds. Any crime without a speech requirement, such as but not limited to burglary, theft, arson, robbery, rape, mayhem, murder, manslaughter, assault, battery, trespass, etc. that have an associated crime of conspiracy to commit X, makes the speech illegal.
Speech as Civil Causes of Action – Defamation
In the civil courts, speech can give rise to causes of action in defamation, false light, copyright violation, false claim of inventor, fraud (contract context), deceit, fraudulent statements (intentional, negligent, concealment, opinion as fact), appropriation of likeness, false claim against the government, infliction of severe emotional distress (intentional and negligent) and others. The remedy for the prevailing party in such actions generally is money damages, but can also include restitution, an injunction, a public apology, public retraction, payment of attorneys’ fees, and punitive damages. Defamation is discussed briefly below. The climate science context is emphasized, where the cause of action may involve climate science. The remaining dozen or so categories will be discussed in Part Two.
Defamation is “the act of harming the reputation of another by making a false statement to a third person.” (Black’s Law Dictionary) Where the false statement is made verbally, the tort is slander. Where the publication is made in writing, the tort is libel. There are several important distinctions in the tort of defamation, including whether the defendant is a public figure or private figure, whether the matter is one of public concern or private concern, whether the false statements were made with malice or not, and whether the false statements were one of a category for which no damages need be proven, or per se. Given the number of distinctions, libel/slander, plaintiff is a public/private figure, public/private concern, malice or not, and per se or not, there are many possible combinations of the tort and detailed laws for each. Here, an example is given only with the combination of libel, plaintiff is a private figure, the matter is one of public concern, no malice need be shown, and the statements needed no damages to be proven. These distinctions are chosen to best match the issue in climate science.
The elements that must be proven are a false statement, made about another, that injured the other’s reputation, and the statement was made to one or more third parties. In addition, plaintiff must prove that the third party reasonably understood that the statement was about plaintiff; that because of the facts and circumstances known to the reader of the statement, it tended to injure plaintiff in his occupation, or expose him to hatred, contempt, ridicule, or shame, or to discourage others from associating or dealing with him. Also, plaintiff must prove that defendant failed to use reasonable care to determine the truth or falsity of the statement; that plaintiff suffered harm to his property, business, profession, or occupation including money spent as a result of the statement; and that the statement was a substantial factor in causing plaintiff’s harm.
Regarding the issue of what is a public concern, courts have observed: “if the issue was being debated publicly and if it had foreseeable and substantial ramifications for nonparticipants, it was a public controversy.” ( Copp v Paxton (1996) 45 Cal.App.4th 829, 845) Climate science, and especially global warming or climate change as it is now known, would certainly qualify as a public controversy. Governments and non-governmental bodies have produced lengthy volumes of climate science documents, held highly publicized meetings all over the world for decades, and have had the topic front and center in many publications and internet websites, all on climate change.
The next major point is, what is a false statement in climate science? A false statement can be intentional, negligent, or by concealment. An intentional false statement is one which the defendant did not believe to be true. A negligent false statement is one which the defendant had no reasonable ground for believing to be true. A false statement by concealment is one in which defendant suppressed a fact when he was bound to disclose it, or when defendant gives information of other facts which are likely to mislead for want of communication of that fact. (California Civil Code 1710).
This is the heart of the matter, the falsity of the statement. One can imagine numerous scenarios of defendants making false statements about another that qualify for one or more of the above three definitions: intentional, negligent, or concealment. Examples of intentionally false would be “he has no training”, “he is incompetent,” “he makes things up,” “he takes money from oil companies,” and such. Negligent falsehoods would be those for which no data exists, or the scientist simply makes up data. Concealment would be the case where scientists deliberately decline to state the facts that clarify or even provide the true state of affairs. One of the finest arts of telling a lie, it is said, is to tell only that part of the truth that misleads the other.
If the statement or statements can be shown to be false, they must next be published to a third party. In effect, if anyone other than plaintiff reads the libelous statement, that is sufficient. With the internet, there can be millions of third parties who read the libelous statement.
Next, the false statement must have injured the plaintiff’s reputation. Injury to reputation is shown that because of the facts and circumstances known to the reader of the statement (the third party), the false statement tended to injure plaintiff in his occupation, or expose him to hatred, contempt, ridicule, or shame, or to discourage others from associating or dealing with him. This can be shown by testimony, by business records showing a decline, by statements showing hatred or contempt or ridicule, by plaintiff testifying to feelings of shame, or that others were discouraged or actually stopped associating or dealing with plaintiff.
Also, plaintiff must prove that defendant failed to use reasonable care to determine the truth or falsity of the statement; that plaintiff suffered harm to his property, business, profession, or occupation including money spent as a result of the statement; and that the statement was a substantial factor in causing plaintiff’s harm.
In the climate science context, it appears that defamation by libel occurs regularly on the various internet blogs (weblogs). An actual lawsuit for libel is currently in process between plaintiff Michael E. Mann, PhD, and defendants Mark Steyn, National Review, and Competitive Enterprise Institute. Professor Mann filed the lawsuit alleging libel. See link
Note: a related article discussed legal liability for criminal negligence in terms of climate science, see link
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Roger E. Sowell, Esq.
Marina del Rey, California
The above is written to provide an overview of a general area of the law, and is not intended, nor is it to be relied on, as legal advice for a particular set of facts. Specific legal advice is available from Mr. Sowell and anyone who seeks such advice is encouraged to contact Mr. Sowell.
strike says: April 21, 2014 at 9:08 am
No worries. The Flat Earth Society president Daniel Shenton turned out to have a great sense of humor http://wattsupwiththat.com/2013/06/26/proud-moment-for-warmists-president-of-real-flat-earth-society-believes-in-the-global-warming-hoax/
Regarding hate crimes….
Nothing is more despicable, and in my opinion, unconstitutional, than the idea of a “hate crime”. What is the difference between saying something threatening or physically hurting a person of the protected class versus an ordinary citizen?
Very true. If someone shatters my collarbone and fractures my orbital ridge during a beating, is there any measurable difference in my pain and suffering based on whether or not they make disparaging remarks regarding my ethnicity during the process? I’d like to see the study that makes that case.
Thanks for providing background for those that didn’t already understand libel cases.
I hope Part 2 will examine the specifics in the Mann-Steyn case.
In my opinion, Mann’s assertion that he was “cleared” by investigations doesn’t have any bearing on the truthfulness of Steyn’s claim that Penn State’s investigation was as flawed as their investigation of Jerry” Sandusky. I would think that discovery and arguments should focus on the thoroughness of Penn State’s investigation. The transcript of Richard Lindzen’s testimony during the investigation should prove helpful to Steyn. Lindzen said something like, “That’s it? You aren’t going to ask me about the real issues that you should be investigating?”
That being said, the actual facts and arguments don’t matter if a judge makes up his mind to rule in favor of Mann.
1. It’s strange that you use the word “allegedly” in this paragraph. You can read what Steyn wrote for yourself. Steyn has never claimed that he didn’t write the article at issue.
2. Steyn’s comparison quite clearly implied that both had been the subjects of flawed investigations by Penn State.
Thanks Rodger, helps clarify the machinations of the Just-Us system.
Hate speak being one of those pernicious categories.
Thought crimes really.
The ability to doubt, ask for evidence and the freedom to express ones doubt of authority, are hard won rights.
Politicians and the kleptocrats are always trying to circumvent these rights, as they threaten the ability to take ,unchecked from the public purse.
After all, if the details of government contracts are open to the taxpayer scrutiny, it is more difficult to favour your special friends.
It is my opinion that CAGW will spell the end of government funding for science, as we know it.
Jay et al:
Actually you should read Count VII of the plaintiff’s Complaint. See also Judge Weisberg’s Order at http://www.washingtonpost.com/news/volokh-conspiracy/wp-content/uploads/sites/14/2014/01/MannvNR-1-22.pdf
I read directly from the Judge Weisberg’s opinion about what the Judge thought Steyn said: “Opinions and rhetorical hyperbole are protected speech under the First Amendment. Arguably, several of defendants’ statements fall into these protected categories. Some of defendants’ statements, however, contain what could reasonably be understood as assertions of fact. Accusing a scientist of conducting his research fraudulently, manipulating his data to achieve a predetermined or political outcome, or purposefully distorting the scientific truth are factual allegations. They go to the heart of scientific integrity. They can be proven true or false. If false, they are defamatory. If made with actual malice, they are actionable. Viewing the allegations of the amended complaint in the light most favorable to the plaintiff, a reasonable finder of fact is likely to find in favor of the plaintiff”.
Hence with respect to Mann, if the alleged statements are false, they are defamatory, if made with actual malice, they are “actionable”.
This isn’t a “beauty” or popularity contest, (We know Steyn would win that). I’m just looking at the statements, what the judge found, and what my experience has been seeing these sort of things play out in Court. To most people not personally involved, they are an annoyance. Will discovery be useful? We will see what is permitted.
As with most commentators here, I am of the opinion that Steyns column with is the subject of the lawsuit doesnt come remotely close to being defamation for numerous reasons including, but not limited to 1) public figure, 2) no damage to reputation 3) no damages, 4) substantial quality and quantity of contrary science to support the opposite opinion, 5 ) the lack of actual exonerations,
That being said, Sherry Moore has a much better take on the case is likely to progress. Juries are very fickle, the likely jury pool will tilt to be liberal to very liberal and have a predisposition to believing in the science. The jury is likely to be less versed in the science (both supporting AGW and contrary to AGW) than the typical poster to this site. The judge (the second judge) has already shown a slight predisposition to holding for the plaintiff.
What Steyn stated was that mann tortured and molested the data, which has been adequately documented via McIntyre, and which was acknowledged in the NSF memorandum. It should be noted that believers in the science continue to recognize the NSF caveat in the “NSF memorandum continuing to believe the NSF exonerated mann.
To paraphrase Sherri’s comment, Steyns better hope is that the jury sees and angry white professor throwing a temper tamptrum and being a big baby.
Sadly, I have every confidence that a judge or jury could find for Mann — people are just stupid and tribal. The U.S. “justice” system is a risky business.
Perhaps Mr. Steyn could prevail upon renown climate scientist Richard Muller to describe whether he believes Mann’s trick of hiding-the-decline was fraudulent…
Joe, I think your points are exactly right, including, unfortunately, your view of the jury and, perhaps, the judge.
However, if your initial point as to Mann being a public figure is accepted at trial, the burden shifts very heavily to Mann to demonstrate that Steyn wrote in knowing disregard of the truth about Mann otherwise the “proof of malice” will be absent and Mann cannot win. Proving that someone wrote something while knowing its opposite to be true is incredibly difficult. All the more so when the truth is deeply contested as it is here.
Did Mann torture his data? Maybe. Is there lots of credible evidence that he did? Yes. Did Steyn have access to the evidence that Mann manipulated and distorted data? Yes. Simply having a glancing familiarity with Steve MacIntyre’s work or Momford’s Hockey Stick Illusion would establish that Mann’s work was strongly contested.
If Mann is a public figure, and it appears objectively he is and, as I recall, he has admitted as much, then his burden of proof is nearly impossible.
(And I note that Steyn has indicated he is perfectly willing to proceed with discovery – which suggests that he and his distinguished 1st Amendment lawyers are confident that a) Steyn has nothing to hide, and, perhaps, b) that Steyn may very well have a stack of evidence of his reading and research which will, upon disclosure, put paid to any assertion that he wrote recklessly of the truth.
I hope this ends up going to trial. This could turn out to be the Scopes trial for the Climate Science religion.
Questions for the legal gurus:
To date, Mann has refused to turn over any of the discovery items requested by Steyn. What legal ground does Mann have on this? How does the fact that Steyn counter-sued affect this?
If the case ends up not going to trial, does the information gathered during the discovery phase remain confidential?
I think this one might be a squeeker–all you have to have is one juror believe that Steyn has a right to free speech, and US public opinion is usually fairly strong on the rights of a free press. It will be Academic Freedom and Intellectual Property Rights versus Free Speech and Freedom of the Press. Even if the jury tilts left, there could be one juror on the side of Freedom of the Press. Or you could have a Solomon decision where they find Steyn guilty but find Mann guilty on the counterclaim and the damages cancel each other out.
Forget the Freedom of Information Act. You need a real subpoena to get the information that Mann is hiding or has destroyed. The NSA probably has all of it in Foggy Bottom or somewhere if they can just find it. Russian Mafia might be helpful.
Privacy rights are generally held to be against public policy when there is a crime involved. Did anyone ever get punished for stealing the Climategate emails?
The key question for me is, how long can Mann delay complying with discovery before the judge finds him in contempt and/or enters a summary judgment for Steyn? If I were the judge, that answer would have to be before now, even if Steyn’s discovery request extends to every piece of evidence cited in The Hockey Stick Illusion.
Again, I don’t understand the implied uncertainty with respect to exactly what Steyn wrote. The judge knows exactly what was written.
Maybe you meant to write that you’re analyzing the judge’s thoughts about what Steyn wrote.
One can certainly argue that scientific fraud and data manipulation can be an opinion instead of fact, but I can understand allowing the case to proceed when viewing in “light most favorable to the plaintiff…” I think many believe that the real battle is going to be fought during discovery hearings and the actual integrity of Mann’s hockey stick.
Willis said “PS—Curiously, in Britain it is much, much easier to sue someone for libel, for a bizarre reason—under British law, you can be sued for libel just for telling the truth about someone.”
Sorry but that’s incorrect: “justification” (that an alleged defamatory statement is true) is an absolute defence to defamation proceedings in England and Wales (though Scots law may be different – I wouldn’t know). However the sting is in the tail – the onus of proof of justification (that an alleged defamatory statement was true) is always on the defendant. So, anyone who alleges he/she has been defamed may issue proceedings (simply taking a writ of summons to the High Court in the Strand for issue and paying the issue fee – a 10-minute job – then serving the writ) when the onus falls on the defendant to prove the statement was true else face potentially huge damages and costs.
This has enabled wealthy English plaintiffs to serve “gagging writs”, causing defendants immense difficulty and expense in proving that the complained-of statement was justified – exactly the mischief that the anti-slapp laws were designed to counter in the US. But, that apart, under the laws of England and Wales justification (truth of the alleged defamatory statement) is an absolute defence to defamation proceedings.
But why are we having all these recent threads about legal issues – I had rather hoped myself that “puzzling things in life, nature, science, weather, climate change and technology” would miss lawyerly issues by a country mile..?
Little detail #1 – most accept that something is either true or false; I would not go that far, and in particular, we may not be able to determine whether a particular statement is true or false for a very long time.
Little detail #2 – demonize the enemy. works like a charm. related to hate speech but not quite the same. very popular. “Who will rid me of this meddlesome priest?”
Little detail #3 – The guys who put the free speech thing into the constitution had something particular in mind, I suspect, I don’t know, along the Voltaire line, not the modern anything goes line. I think that they meant political speech which the king would have called treason or sedition. I think they had in mind that the only defense against a government becoming totalitarian is free speech. Smart guys.
That really provides a very simple explanation. Having Muller be a witness for Steyn would be huge. That hockey stick graph was deliberately given very WIDE press and labeled definitively as Tree Ring Data. No data was provided that indicated that it was anything other than Tree Ring data – which turned out to be a lie.
Cold in Wisconsin says:
April 21, 2014 at 1:08 pm
I looked into this. From what I have heard, civil cases do not require a unanimous verdict. However, Rule 48 of the DC Superior Court requires the verdict to be unanimous. The jury is also to consist of not fewer than 6 and no more that 12 jurors. Learn something new every day.
http://www.dccourts.gov/internet/documents/Civil-Rules-Jan-2012.pdf
@TimC says:
April 21, 2014 at 1:30 pm
If there is anything more puzzling in “life” than The Law, I have yet to run into it. With the possible exception of the Theory of Relativity, to which understanding I am closer to by the very faintest margin. 😉
Oops! Yes there is. My mistake.
j ferguson says:
April 21, 2014 at 4:59 am
I look forward to learning which of my words threw my comment into moderation.
[Reply: sometimes we never know, and WordPress won’t tell. ~ mod]
Hm. Let me guess:
2 times “conspiracy”? ” conspiracy to commit a crime” ” involved to do something criminal ”
Lol, I guess you have a bunch of words to place that comment into moderation – bet the same will happen to mine.
Remember this is not a human and does not read into context, it is just a machine…
Roger,
Is it California Bar which inhibits your sharing of the wisdom of the law? I remember that there was something in the Architectural Registration Code (or whatever they called it) that made it a violation to do free sketches, or for that matter any work without a contract.
“Principals” with arbitrary exceptions are not principals at all. If free speech means you can say whatever you want, with exceptions, and there is no principal articulating why they are exceptions, then free speech is an illusion.
Philosophically, “freedom of speech” means the government may not control your thinking by penalizing communications; it protects against government attempts at mind control.
Lies are not protected — because they are also attempts at mind control, by individuals; the “freedom to lie” is a contradiction.
Campaign contributions are speech because they pay for speech; if you limit the money, you limit the speech it pays for.
Laws against “hate speech” are tools of mind control; the government is trying to stamp out “hate” by penalizing its expression; this is despicable, as other commenters have noted, and very dangerous.
Child pornography is prohibited, not for what it expresses, but for how it’s made: by injuring children.
Thus the principal in all cases is that people have a right to form their own judgements, without government coercion.
Unfortunately, the law as described by Mr. Sowell does not consistently recognize that principal.
Make that “principles.” Sorry.